Australian Federation of Employers and Industries

[2016] FWC 9150

[2016] FWC 9150

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
Sch. 1, Cl. 6(2) RO Act - Application for an extension by a TRA

Australian Federation of Employers and Industries
(D2016/80)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 22 DECEMBER 2016

Application/Notification for an extension by a transitionally recognised association by the Australian Federation of Employers and Industries.

[1] On 19 December 2016 the Australian Federation of Employers and Industries (the Applicant) lodged an application to extend its status as a Transitionally Recognised Association (TRA) pursuant to Schedule 1 Clause 6 of the Fair Work Registered Organisations Act 2009 (the RO Act).

[2] The application was signed on behalf of the Applicant by Ashurst Australia, the legal representative of the Applicant.

[3] The Applicant seeks an extension to its status on the basis that it has made substantial progress towards becoming an organisation registered pursuant to the RO Act.

[4] Attached to the application was a Statutory Declaration by Mr Gary Brack, the Applicant’s Chief Executive.

[5] I note that, the Applicant has no Federal counterpart but has taken a decision that it wishes to be registered.

[6] The Board of the Applicant made a decision on 11 December 2014 to seek federal registration.

Relevant Legislation

[7] The TRA regime was devised to encourage rationalisation of Australia’s mish-mash of federal and state registered unions and employer organisations. It was also necessary to ensure that when coverage of the federal industrial system was substantially expanded following the Workchoices legislation and the Fair Work Act 2009, particular unions and employer organisations were not disadvantaged.

[8] The process for applying for TRA status is dealt with in Schedule 1 Clause 2(1) of the RO Act as follows:

“2 Application for transitional recognition

(1) A State-registered association may apply to the General Manager for transitional recognition under this Schedule if:

(b) immediately before the commencement of this Schedule, it had at least one member who was:

(i) an employee whose employment was subject to a State award, a State employment agreement or a State or Territory industrial law; or
(ii) an employer in relation to such an employee; and

(c) immediately before the commencement of this Schedule, it was entitled to represent the industrial interests of the member in relation to work that was subject to the State award, the State employment agreement or the State or Territory industrial law; and

(d) on the reform commencement, the employee will become bound by, or the employment of the employee will become subject to, a preserved State agreement or a notional agreement preserving State awards if he or she continues in that employment; and
(e) it is not also an organisation, or a branch of an organisation.”

[9] Clause 6(1)(c)(i) of Schedule 1 of the RO Act provides that the transitional recognition of a TRA will end on the fifth anniversary of the date declared by the Minister pursuant to s.158A(2).

[10] Clause 6 of Schedule 1 provides:

“6 End of transitional recognition

(1) The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1) ends:

(a) when it is cancelled under clause 5; or

(b) when the association becomes an organisation; or

(c) in any other case—at the end of:

(i) unless subparagraph (ii) or (iii) applies—the fifth anniversary of the earliest day on which an organisation can make an application in accordance with subsection 158A(2); or
(ii) if the FWC grants the association an extension under subclause (2) of this clause and subparagraph (iii) does not apply—the sixth anniversary of that day; or
(iii) if the FWC grants the association a further extension under subclause (3) of this clause—the seventh anniversary of that day.

(1A) The recognition under this Schedule of a transitionally recognised association that has been granted transitional recognition in relation to an application under subclause 2(1A) ends:

(a) when it is cancelled under clause 5; or

(b) when the association becomes an organisation; or

(c) in any other case—at the end of the latest of the following days:

(i) the day (the default day) that is the later of the fifth anniversary of the day the Fair Work Amendment (Transfer of Business) Act 2012 commenced and a day prescribed by the regulations;
(ii) if the FWC grants the association an extension under subclause (2)—the anniversary of the default day;
(iii) if the FWC grants the association a further extension under subclause (3)—the second anniversary of the default day.

(2) The FWC may, on application by a transitionally recognised association, grant the association an extension for the purposes of subparagraph (1)(c)(ii) or (1A)(c)(ii) if the FWC is satisfied that the association has made progress towards:

(a) becoming an organisation; or
(b) rationalising its internal affairs with those of its federal counterpart.

(3) The FWC may, on application by a transitionally recognised association, grant the association a further extension for the purposes of subparagraph (1)(c)(iii) or (1A)(c)(iii) if the FWC is satisfied that:

(a) the association has made further progress towards:

(i) becoming an organisation; or
(ii) rationalising its internal affairs with those of its federal counterpart; and

(b) there are extenuating circumstances justifying the further extension.”

[11] On 13 December 2010, the then Minister, Chris Evans designated 1 January 2012 as the relevant date. Therefore in the absence of an extension being granted, the transitional recognition of the Applicant will cease on 1 January 2017.

Commission Proceedings

[12] The matter was heard on 22 December 2016 in Sydney.

[13] The Applicant was represented by Mr David Lloyd of Ashurst Australia, Solicitors accompanied by Mr G. Brack.

‘

Consideration

[14] It can be seen that an extension of one year, to 1 January 2018, can be granted by the Commission if it is satisfied that the Applicant has made progress “towards becoming an organisation or rationalising its internal officers with those of its federal counterpart”. Only the first limb is relevant to this application. A further extension of one year may be granted, upon further application, if “further progress” is made and extenuating circumstances exist.

[15] The Applicant, proposes to have a new set of rules which will comply with the RO Act ready for a Board meeting in March 2017 work has commenced on the drafting of these rules. It will be necessary for these rules to be the subject of written notification to members prior to a Special General Meeting of members to be held in April. The application for registration will then be filed. Of course, the Applicant will need to get over the hurdles in part 2 of the RO Act in order to achieve Federal Registration. I note that the Regulations provide some exemptions in relation to some aspects of s.19 in relation to TRA applications for registration.

Conclusion

[16] In all the circumstances, I am satisfied that the Applicant has made progress, limited though that is, towards becoming an organisation. More time is obviously necessary for this to occur. Accordingly, it is appropriate to grant an extension of the Applicant’s TRA Status.

Order

Pursuant to Schedule 1 Clause 6(2) of the Fair Work (Registered Organisations) Act 2009, an extension of the Australian Federation of Employers and Industries’ Transitionally Recognised Association status is granted. The Australian Federation of Employers and Industries is now transitionally recognised until 1 January 2018.

DEPUTY PRESIDENT

Appearances:

D. Lloyd, solicitor with G. Brack for the Applicant.

Hearing details:

2016

Sydney:

December 22.

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